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DECREE

Amending and supplementing a number of articles of the Government's Decree no. 105/2003/nd-cp of september 17, 2003, which details and guides the implementation of a number of articles of the Labor Code regarding the employment and management of foreign laborers in Vietnam

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the June 23, 1994 Labor Code and the April 2, 2002 Law Amending and Supplementing a Number of Articles of the Labor Code;

At the proposal of the Minister of Labor, War Invalids and Social Affairs,

DECREES:

Article 1.- To amend and supplement a number of articles of the Government's Decree No. 105/2003/ND-CP of September 17, 2003, detailing and guiding the implementation of a number of articles of the Labor Code regarding the employment and management of foreign laborers in Vietnam as follows:

1. Article 1 is amended and supplemented as follows:

"Article 1.- The following enterprises, agencies and organizations in Vietnam, defined in Article 132 of the Labor Code, which are established and operate under Vietnamese law, may employ foreign laborers:

1. Enterprises operating under the State Enterprises Law, the Enterprises Law or the Law on Foreign Investment in Vietnam.

2. Foreign contractors (contractors, subcontractors) performing contracts in Vietnam.

3. Representative offices and branches of economic, trade, financial, banking, insurance, scientific and technical, cultural, sport, educational, training, and medical organizations.

4. Socio-professional organizations.

5. Non-business units of the State.

6. Medical, cultural, education, training and sport establishments (including those set up under the Enterprises Law, the State Enterprises Law or the Law on Foreign Investment in Vietnam).

7. Vietnam-based offices of foreign or international projects.

8. Managing offices of foreign parties to business cooperation contracts in Vietnam.

9. Vietnam-based lawyers' organizations under Vietnamese law.

10. Cooperatives.

The above-said enterprises, agencies and organizations are hereinafter referred collectively to as labor users."

2. Article 3 is amended and supplemented as follows:

"Article 3.-

1. Labor users defined in Clause 1, Article 1 of this Decree may employ a number of foreign laborers accounting for 3% at most of the existing number of laborers of their enterprises and at least 1.

For enterprises which operate in specific domains that require a small number of laborers or have just begun investment and not yet stabilized production but wish to employ a number of foreign laborers accounting for more than 3%, they must submit proposals to presidents of provincial/municipal People's Committees for consideration and written approval on the basis of the actual need of each enterprise.

2. For labor users defined in Clauses 2, 3, 4, 5, 6, 7, 8, 9 and 10, Article 1 of this Decree, the percentage of foreign laborers they are allowed to employ is not set, but if wishing to employ foreign laborers, they must obtain the approval of presidents of provincial/municipal People's Committees.

3. In cases where enterprises and organizations defined in Article 1 of this Decree have projects approved or have been granted operation licenses by Vietnamese competent state agencies, which specify the number of foreign laborers they are allowed to employ, the approval of presidents of provincial/municipal People's Committees is not required."

3. Clauses 3 and 4 of Article 4 is amended and supplemented as follows:

"3. Possessing high professional or technical qualifications (including engineers or people with equivalent or higher degrees; craftsmen of traditional crafts), a lot of experience and working seniority in their professions, production/business administration or managerial jobs which Vietnamese laborers are incapable of.

For foreign laborers that apply for licenses for practicing private medicine or pharmacy, or directly providing medical examination or treatment in Vietnam, they must fully meet the conditions provided for by Vietnamese law on private medicinal and pharmaceutical practice.

4. Having no criminal records; not being examined for penal liability or serving criminal penalties under Vietnamese and foreign laws."

4. Clause 1 of Article 6 is amended and supplemented as follows:

"1. Foreign laborers working for enterprises, agencies or organizations in Vietnam must have work permits, except for the following subjects:

a/ Foreign laborers entering Vietnam to work for less than 3 (three) months or to handle such emergency cases as complicated technical or technological unexpected problems which affect or threaten to affect production/business activities and which Vietnamese experts or foreign experts currently working in Vietnam are unable to handle;

b/ Foreigners being members of Managing Boards or Members' Councils (for limited liability companies set up under the Enterprises Law) of enterprises set up under Vietnamese law;

c/ Foreigners being chiefs of Vietnam-based representative offices or branches;

d/ Foreign lawyers granted permits by the Ministry of Justice to practice law in Vietnam according to the provisions of law."

5. Clause 4 of Article 6 is amended and supplemented as follows:

"4. The valid duration of a granted work permit shall coincide with the term stated in the labor contract to be entered into or in the decision of the foreign party that sends the foreign laborer to work in Vietnam, but must not exceed 36 months."

6. Clause 5 of Article 6 is amended and supplemented as follows:

"5. For the subjects who are not required to have work permits as defined in Clause 1 of this Article, labor users shall have to report to provincial/municipal Services of Labor, War Invalids and Social Affairs of the localities (where the enterprises, agencies or organizations are headquartered) on the personal details of foreign laborers, including their full names, age, nationalities, passport numbers, dates of job commencement and completion, and jobs to be done, 7 (seven) days before the concerned foreign laborers start to work.

For foreigners entering Vietnam to perform assorted contracts (other than labor contracts) between enterprises, agencies or organizations in Vietnam and foreign enterprises, agencies or organizations, they shall not have to apply for work permits but must fully meet the conditions set in Clauses 1, 2, 3 and 4, Article 4 of this Decree while the enterprises, agencies or organizations in Vietnam shall make reports as required for foreigners working for less than 3 (three) months for enterprises, agencies or organizations in Vietnam, enclosed with the foreigners' papers specified at Items b, c, d and e, Clause 1, Article 5 of this Decree."

7. Clause 3 of Article 7 is amended and supplemented as follows:

"3. Extensible duration of work permits:

Thirty working days before the expiration of work permits, labor users must apply for extension thereof according to the regulations of the Ministry of Labor, War Invalids and Social Affairs.

The extensible duration of a work permit shall depend on the duration for which the foreign laborer continues to work for the labor user, which is determined in the labor contract or the foreign party's written approval for the foreigner to continue working in Vietnam, but must not exceed 36 (thirty six) months. In case the first-time extended duration has expired but substitute Vietnamese laborers have not been trained yet, the work permits shall be further extended if so approved by presidents of People's Committees of provinces or centrally-run cities where the enterprises, agencies or organizations are headquartered."

Article 2.- The Ministry of Labor, War Invalids and Social Affairs and concerned ministries and branches shall, within the ambit of their functions, tasks and powers, have to guide the implementation of this Decree.

Article 3.- This Decree takes effect 15 days after its publication in "CONG BAO." All previous regulations contrary to this Decree are hereby annulled.

Article 4.- Ministers, heads of ministerial-level agencies, heads of Government-attached agencies, and presidents of provincial/municipal People's Committees shall have to implement this Decree.

On behalf of the Government

Prime Minister
PHAN VAN KHAI